HBA-NMO H.B. 2808 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 2808 By: Lewis, Ron Natural Resources 4/19/1999 Introduced BACKGROUND AND PURPOSE The 75th Texas Legislature enacted legislation establishing a comprehensive framework for the development and management of the state's water resources. Follow-up legislation may be needed to consolidate the emergency and enforcement provisions of the Texas Natural Resource Conservation Commission, provide for coordinated management planning districts within the same priority groundwater management area, streamline the issuance of temporary water rights permits, and distinguish the issuance of an emergency water right from an emergency transfer of water. H.B. 2808 amends the Water Code and the Health and Safety Code to address these issues. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the Texas Natural Resource Conservation Commission in SECTION 2 (Sections 5.517 and 5.518, Water Code) and SECTION 16 (Section 11.138, Water Code), of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 5.504(a), Water Code, to require that an emergency order issued under Section 5.517 or 5.518 set a time for the hearing not later than the 20th day after the date the emergency order is issued. SECTION 2. Amends Subchapter L, Chapter 5, Water Code, by adding Sections 5.517, 5.518, 5.519, and 5.520, as follows: Sec. 5.517. EMERGENCY PERMIT TO DIVERT AND USE WATER; AMENDMENT TO WATER RIGHT. (a) Authorizes the Texas Natural Resource Conservation Commission (TNRCC), except as provided by Section 5.506 (Emergency Suspension of Permit Condition Relating to Beneficial Inflows to Affected Bays and Estuaries and Instream Uses) and after notification to the governor, to issue by emergency order a permit to divert and use water or amend an existing permit, certified filing, or certificate of adjudication for an initial period not to exceed 120 days if TNRCC finds that emergency conditions exist that override the necessity to comply with established statutory procedures and there is no feasible alternative to the emergency authorization. Authorizes the renewal of an emergency authorization once for a period not to exceed 60 days. (b) Authorizes the executive director of TNRCC (executive director) to issue an emergency order if an imminent threat to the public health, safety, and welfare or the environment exists that requires emergency action before TNRCC can take action under Subsection (a) and there is no feasible alternative. Requires TNRCC, if the executive director issues an emergency order under this subsection, to hold hearing as provided for in Section 5.504 (Hearing to Affirm, Modify, or Set Aside Order) as soon as practicable but not later than 10 days after issuance of the order to affirm, modify, or set aside the order. Provides that the person desiring the emergency order must comply with Section 5.502 (Application for Emergency or Temporary Order) before the executive director is authorized to act on the request for emergency action. (c) Provides that the notice requirements of Section 11.132 (Notice) relating to the time for notice, newspaper notice, and method of giving a person notice do not apply to a hearing held on an application for an emergency order under this section. Requires TNRCC to give the general notice of the hearing that it considers practicable under the circumstances. (d) Authorizes TNRCC to adopt rules and impose fees necessary to carry out the provisions of this section. Provides that an emergency order under this section does not vest in the grantee of any right to the diversion, impoundment, or use of water and expires by its terms. Sec. 5.518. EMERGENCY ORDER FOR TEMPORARY TRANSFER OF USE OF WATER RIGHT. (a) Authorizes TNRCC by emergency order to grant the temporary transfer and use of all or part of a surface water right for other than domestic or municipal use to a retail or wholesale water supplier for public health and safety purposes. (b) Authorizes TNRCC to direct the applicant to timely pay the amounts for which the applicant may be potentially liable under this section and to fully indemnify and hold harmless the state, executive director, and TNRCC from any and all liability for the order sought. Authorizes TNRCC to order bond or other surety in a form acceptable to TNRCC as a condition for an emergency order under this section. Prohibits TNRCC from granting an emergency authorization under this section that would cause a violation of a federal regulation. (c) Provides that a person granted an emergency authorization under this section is liable to the owner from whom the use is transferred and for any damages proximately caused by the transfer of use. Authorizes either party to file a complaint with TNRCC to determine the amount due, if, within 60 days of the termination of the order, the parties do not agree on the amount due, or if full payment is not made. (d) Requires TNRCC, by rule, to establish a dispute resolution procedure for a complaint filed under this section. Authorizes an owner from whom the use is transferred to file suit to recover or determine the amount due in a district court in the county where the owner resides or has its headquarters. Entitles the prevailing party in a suit filed under this subsection to recover court cost and reasonable attorney's fees. Sec. 5.519. EMERGENCY WORKS SAFETY ORDER. Authorizes TNRCC to issue a mandatory or prohibitory emergency order directing the owner of a dam, levee, or other water-storage or flood-control work to repair, modify, maintain, dewater, or remove a work if TNRCC finds certain conditions exist. Sec. 5.520. EMERGENCY ORDER FOR OPERATION OF UTILITY THAT DISCONTINUES OPERATION OR IS REFERRED FOR APPOINTMENT OF RECEIVER. Authorizes TNRCC to issue an emergency order appointing a willing person to temporarily manage and operate a utility under Section 7.403. Provides that notice of the action is adequate if the notice is mailed or hand delivered to the last known address of the utility's headquarters. SECTION 3. Amends Section 7.004, Water Code, to provide that nothing in this chapter affects the right of a political subdivision that has a justiciable interest, in addition to a private corporation or individual to pursue any available common law remedy to enforce a right, in addition to abate a condition of pollution or other nuisance, to recover damages to enforce a right, or to prevent or seek redress or compensation for violation of a right or otherwise redress an injury. SECTION 4. Amends Subchapter B, Chapter 7, Water Code, by adding Section 7.034, as follows: Sec. 7.034. ATTORNEY'S FEES; COSTS. Authorizes a district court to award the cost of litigation, including reasonable attorney's fees and expert costs, to any political subdivision of the state, private corporation, or individual that is a water right holder and that prevails in a suit for injunctive relief to redress an unauthorized diversion, impoundment, or use of surface water in violation of Chapter 11 (Water Rights) or a rule adopted under Chapter 11. SECTION 5. Amends Section 7.051(b), Water Code, to provide that this subchapter (Administrative Penalties) does apply to Section 16.236 (Construction of Levee Without Approval of Plans; Levee Safety). Deletes language that provides that this subchapter does not apply to Chapter 11, Water Code, or Chapter 341 (Minimum Standards of Sanitation and Health Protection Measures), Health and Safety Code. Makes a conforming change. SECTION 6. Amends Section 7.052, Water Code, to prohibit the amount of the penalty for a violation under Chapter 11 from exceeding $5,000 a day for each violation. Prohibits the penalty for a violation of a rule or order adopted under Section 16.236 from exceeding $1,000 a day for each violation. Prohibits the amount of a penalty for a violation under Chapter 341, Health and Safety Code, from being less than $50 or more than $1,000 for each violation. Makes conforming changes. SECTION 7. Amend Section 7.054, Water Code, to require a report regarding a possible violation under Chapter 11 to state the facts on which the conclusion was based and recommend the amount of any penalty. Requires the executive director to base the recommended amount of the proposed penalty on the factors provided by Section 7.053 and to analyze each factor for the benefit of TNRCC. SECTION 8. Amends Section 7.069, Water Code, to require a penalty collected under this subchapter from a public utility to be paid to TNRCC and deposited in the water utility improvement account as provided by Section 341.0485 (Water Utility Improvement Account), Health and Safety Code. Makes conforming changes. SECTION 9. Amends Subchapter B, Chapter 7, Water Code, by adding Section 7.076, as follows: Sec. 7.076. COMPROMISE, MODIFICATION, OR REMISSION OF CERTAIN PENALTIES. Authorizes TNRCC to compromise, modify, or remit, with or without condition, any penalty imposed under this subchapter for a violation under Chapter 11. SECTION 10. Amends Section 7.102, Water Code, to prohibit the amount of a penalty for a violation of a rule under Section 12.052 (Dam Safety) from exceeding $5,000. Requires that a person who causes, suffers, allows, or permits a violation of a statute, rule, order, or permit relating to Chapter 13 (Water Rates and Services), be assessed for each violation a civil penalty not less than $100 nor greater than $5,000 for each day of each violation as the court or jury considers proper. Makes conforming changes. SECTION 11. Amends Sections 7.105(a) and (c), Water Code, to authorize the attorney general to initiate a suit for recovery of a penalty under this section for a violation under Section 13.414 (Penalty Against Retail Public Utility or Affiliated Interest). Authorizes a suit to recover a penalty for a violation of a rule or order issued by TNRCC under Section 12.052 to be brought in Travis County. Makes conforming changes. SECTION 12. Amends Subchapter D, Chapter 7, Water Code, by adding Section 7.1075, as follows: Sec. 7.1075. DISPOSITION OF PENALTY COLLECTED FROM PUBLIC UTILITY. Requires that a penalty collected under this subchapter from a public utility be paid to TNRCC and deposited in the water utility improvement account as provided by Section 341.0485, Health and Safety Code. SECTION 13. Amends Subchapter D, Chapter 7, Water Code, by adding Section 7.112, as follows: Sec. 7.112. LIMITATION ON SUIT FOR VIOLATION OF SECTION 11.081. Provides that an action to collect the penalty provided by Section 7.102 for a violation of Section 11.081 (Unlawful Use of State Water) must be brought within two years from the date of the alleged violation. SECTION 14. Amends Section 7.351, Water Code, to make a conforming change. SECTION 15. Transfers Section 11.0843, Water Code, to Subchapter C, Chapter 7, Water Code, renumbers it as Section 7.077, and amends it, to delete text requiring a penalty collected under this section to be deposited in the state treasury to the credit of the general revenue fund. Makes conforming changes. SECTION 16. Amends Section 11.138(a), Water Code, to authorize TNRCC, by rule, to authorize the beneficial use, without a permit, of not more than 25 acre-feet of water, for a term not to exceed one year, if the diversion of water will not affect existing water right holders and the user of the water registers the use with TNRCC in the manner required by TNRCC. SECTION 17. Amends Section 11.139, Water Code, to authorize TNRCC to grant an emergency permit, order, or amendment to an existing permit, certified filing, or certificate of adjudication under Subchapter L (Emergency and Temporary Orders), Chapter 5 (Texas Natural Resource Conservation Commission). Deletes existing text regarding emergency authorizations. SECTION 18. Amends Section 11.173(b), Water Code, to provide that a permit, certified filing, or certificate of adjudication or a portion of a permit, certified filing, or certificate or adjudication is exempt from cancellation under Subsection (a) of this section (Cancellation in Whole or in Part) if it was obtained to meet demonstrated long-term public water supply or electric generation needs as evidenced by a water management plan developed by the holder and consistent with projections of future water needs contained in the state water plan, or if it was obtained as the result of the construction of a reservoir funded, in whole or in part, by its holder as part of the holder's long-term planning. SECTION 19. Amends Section 11.177(b), Water Code, to make conforming changes. SECTION 20. Amends Sections 12.052(c), (d), (e) and (f), Water Code, to make conforming changes. SECTION 21. Transfers Section 13.411, Water Code, to Subchapter B, Chapter 7, Water Code, renumbers it as Section 7.0325, and amends it as follows: Sec. 7.0325. New title: ACTION TO ENJOIN OR REQUIRE COMPLIANCE: RETAIL PUBLIC UTILITIES. Makes conforming changes. SECTION 22. Amends Chapter 7, Water Code, by adding Subchapter I, and transfers Sections 13.412, 13.4131, and 13.4132, Water Code, to Subchapter I, Chapter 7, Water Code, redesignated as Section 7.401, 7.402, and 7.403, as follows: SUBCHAPTER I. RECEIVERSHIP; SUPERVISION OF CERTAIN UTILITIES Sec. 7.401. RECEIVERSHIP. Makes a conforming change. Sec. 7.402. SUPERVISION OF CERTAIN UTILITIES. Authorizes TNRCC to require the utility to meet, rather than abide by, conditions and requirements prescribed by TNRCC and to obtain commission approval before taking an action under Subdivision (1), rather than Subsection (b), of this section. Authorizes an action or transaction for which commission approval is required by this section that occurs without commission approval to be void by TNRCC. Deletes text regarding TNRCC's supervision of a utility. Makes conforming and nonsubstantive changes. Sec. 7.403. OPERATION OF UTILITY THAT DISCONTINUES OPERATION OR IS REFERRED FOR APPOINTMENT OF RECEIVER. Makes conforming changes. SECTION 23. Amends Section 13.414, Water Code, as follows: Sec. 13.414. New title: VIOLATION BY RETAIL PUBLIC UTILITY OR AFFILIATED INTEREST. Makes conforming changes. SECTION 24. Transfers Section 13.417, Water Code, to Subchapter B, Chapter 7, Water Code, renumbers it as Section 7.034, Water Code, and amends it, as follows: Sec. 7.034. New title: CONTEMPT PROCEEDINGS IN UTILITY ACTION. Makes conforming changes. SECTION 25. Amends Chapter 35, Water Code, by adding Section 35.010, as follows: Sec. 35.010. CREATION OF DISTRICTS ON PETITION AFTER DESIGNATION OF PRIORITY GROUNDWATER MANAGEMENT AREA. Prohibits TNRCC from considering the creation of a groundwater conservation district in a designated priority groundwater management area before the conclusion of the next regular session of the Texas Legislature following the designation unless the local landowners have initiated a petition process under Chapter 36 for the creation of a groundwater conservation district with a priority ground water management area. SECTION 26. Amends Section 35.012, Water Code, by adding new Subsections (c) and (d), redesignating existing Subsections (c)-(f) as Subsections (e)-(h), and amending existing Subsection (d), as follows: (c) Requires TNRCC, not later than the 10th day after the date on which the TNRCC order designating a priority groundwater management area is issued, to send a written notice of TNRCC's actions to each landowner in the designation priority groundwater management area at the landowner's most recent known address as shown in the tax rolls of the county in which the land is located. Provides that the notice must include TNRCC's findings and conclusions from the data and information considered in designating the priority groundwater management area and TNRCC's recommendation regarding the need for a groundwater conservation district in the priority groundwater management area. (d) Requires the Texas Agricultural Extension Service, as soon as possible after a TNRCC order designating a priority groundwater management area, to begin an educational program within the area with the assistance and cooperation of the Texas Water Development Board, TNRCC, other state agencies, and existing districts to inform the residents of the status of the area's water resources and management options including possible formation of a district. (f) Redesignated from existing Subsection (d). Deletes existing language to make a conforming change. SECTION 27. Amends Section 36.014, Water Code, to make conforming changes. SECTION 28. Amends Section 36.015, Water Code, to make conforming changes. SECTION 29. Amends Section 36.0151, Water Code, as follows: Sec. 36.0151. New title: NOTICE OF CREATION BY COMMISSION OF DISTRICT FOR PRIORITY GROUNDWATER MANAGEMENT AREA. Makes conforming changes. SECTION 30. Amends Section 36.108, Water Code, as follows: Sec. 36.108. New title: JOINT PLANNING IN MANAGEMENT AREA OR PRIORITY GROUNDWATER MANAGEMENT AREA. Makes conforming changes. SECTION 31. Transfers Section 341.047, Health and Safety Code, to Subchapter E, Chapter 7, Water Code, redesignates it as Section 7.1605, Water Code, and amends it, as follows: Sec. 7.1605. New title: VIOLATIONS RELATING TO PUBLIC DRINKING WATER. Makes conforming changes. SECTION 32. Amends Section 341.048, Health and Safety Code, as follows: Sec. 341.048. New title: VIOLATION. Deletes "civil enforcement" from the title. Deletes text to make conforming changes. SECTION 33. (a) Repealer: Sections 11.082 (Unlawful Use: Civil Penalty), 11.0841 (Civil Remedy), 11.0842 (Administrative Penalty), 13.4151 (Administrative Penalty), 13.416 (Penalties Cumulative), and 13.418 (Disposition of Fines and Penalties; Water Utility Improvement Account), Water Code. (b) Repealer: Sections 341.049 (Administrative Penalty) and 341.050 (Penalties Cumulative), Health and Safety Code. SECTION 34. Effective date: September 1, 1999. SECTION 35. Makes application of this Act prospective. SECTION 36. Emergency clause.